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Law, Legal Education, and Imagining the Future: The Project Continues, Part 4


“The Futures of Legal Education: A Virtual Symposium” is the title of the program convened by Dean Dan Rodriguez at Prawfsblawg for the month of March 2018, eliciting critiques of and extensions of the ideas organized in the provocations posted in December 2017 as “An Invitation Regarding Law, Legal Education, and Imagining the Future.” [Part I, here] [Part II, here] [Part III, here] [Part IV, here] [Part V, here] [And the piece in full, as a single document, from SSRN]

The symposium is organized under the “2018 Symposium: Future of Legal Ed” tag. I have collected highlights from all of the posts, approximately 10 posts at a time. The first batch appears here. The second batch is here. The third batch is here.

Ten additional posts:

“Why does a law school community including students who do not aspire to practice law add up to more than the sum of its parts? I have suggested, to this point, that non-lawyer offerings can be understood to respond to the growing complexity of the world around us. Further, they create a community of more qualified students, coming from a broader range of backgrounds, and pursuing a broader range of post-graduate goals.

“That community, in turn, is precisely the right setting in which to educate our JD students. The degree of understanding, effectiveness, and perspective with which JD students leave law school is dramatically enhanced, thus, by the presence of students with diverse educational backgrounds, professional experiences, and ultimate goals.” (Robert Ahdieh, Emory University)

“Many of the posts in this virtual symposium have mentioned the Law-STEM interface in some fashion. They have tended to focus on two main aspects of this interface: innovative legal-tech and interdisciplinary collaboration between law schools and STEM-oriented units. This post will build on that discussion to argue that (1) Law-STEM covers much more than we typically reference in that context; (2) it is not just for law students, lawyers, and professors with STEM backgrounds; (3) STEM students often aren’t adequately exposed to law as relevant to their career path; and (4) law struggles to regulate fast-moving science and technology effectively across Law-STEM areas.” (Hari Osofsky, Penn State – University Park)

“If lawyers are not available to help those with modest resources navigate through divorces, small business problems, or evictions, we should be training students to address such issues rather than the complex and somewhat rarefied corporate or insolvency issues that demand familiarity with both Australian and U.S. law. Washington’s limited license legal technician has opened the door to reimagining the structure of the legal field so as to meet more legal needs. Perhaps one-year of graduate education (or six months training after an undergraduate degree in law) would be sufficient for real estate closings and for representing social security disability claimants at the administrative level. Regulatory obstacles exist, but Washington’s example along with the success of Arizona’s undergraduate program provide the first steps towards a more cost effective match between the legal education provided and the tasks needed. And, change will likely come at the individual state bar level, whether Washington’s relatively recent experiment with limited licenses or California’s longer experience (as Jackie Gardina relates) with accrediting schools outside of the ABA system. So, while I hesitate to accept Dan’s offer to build a joint LLB/JD program, I offer to work with him and others to encourage state bars to experiment in approving more limited legal licenses to expand access to justice.” (Harold Krent, Chicago-Kent)

“It is worth recognizing that as an innovator in preparing lawyers, Elon Law has taken a long view to achieving success, recognizing that it will take some time to refine the curriculum while explaining the advantages of our approach to legal education. This is consistent with our strategic approach to respond positively to those aspects of legal education that suffer serious critique and that we sought to improve including cost, length and disconnect from the profession. From those perspectives, our assessment thus far is positive although we have some important aspects to continue to monitor and fulfill our strategic imperative for continual improvement.

“Moreover, in the reputation heavy enterprise of law, where long held opinions are tough to shake, we at Elon Law fully understand that innovation may take time to permeate our collective professional consciousness. The changes reported and advocated for in this virtual symposium are necessary because we are writing on a foundation some 150 years in the making. Changes in complex enterprises like higher education do not come easy or quickly. And we are making adjustments not just to address past critiques but to accommodate future trends.” (Luke Bierman, Elon University)

“Law school curricula track (at least) three conditions: the nature and scope of the demand in the legal marketplace for students educated in a particular way; the availability of faculty resources and, relatedly, the general and particular interests of law professors; and, the identification of law schools with a version of a law school ideal type. All three of these conditions make it very, very difficult to imagine law schools eschewing elite values and strategies.” (Dan Rodriguez, Northwestern University)

“Several symposium participants have praised law schools for their innovations over the last generation. They note that schools have strengthened legal writing programs, expanded clinical offerings, and created new experiential courses. These advances are real, but they have been achingly slow. The MacCrate Report called for these improvements twenty-six years ago, and practitioners believed they were already long overdue. Law schools have made progress during the last quarter century, but the changes have often been grudging — and we still fall far short in preparing our students to serve clients.

“I’m troubled, moreover, by the fact that these paeans to progress omit other ways in which legal education has changed during the last quarter century:

“Tuition has risen dramatically.
Salaries for tenure-track faculty have also risen.
Teaching loads for tenure-track faculty have fallen.
Course sizes have declined, so that faculty grade fewer students in each course.
Despite these reductions in teaching load, few tenure-track faculty have created experiential courses or increased the feedback they offer students. Instead, most schools have enhanced feedback and experiential learning by creating a pool of second-class professors.
Resources devoted to marketing, admissions, career services, and other auxiliary services have grown markedly.
Schools have developed elaborate systems of “merit” based scholarships.” (Deborah Merritt, Ohio State University)

“Langdell’s Harvard Law School emerged out of Eliot’s vision for Harvard University, which itself reacted to global social and economic shifts. The American college was becoming the Germanic university. Late 19th and early 20th century law schools that professionalized law as an academic subject were part of larger shifts to research-based higher education. Twenty-first century universities are organized around different changes and challenges. The professionalized legal academy may be a barrier — to justice as much as to innovation — as much as an opportunity.

“My question is: How should law schools participate in new and emerging systems of higher education?” (Michael Madison, University of Pittsburgh)

“While I have found most of the contributions to this virtual symposium to be very thought-provoking, I have been struck by how little discussion there has been about learning outcomes. Whether people fully understand this or not, the most significant change in the ABA’s Accreditation Standards in the last two decades is the mandate that law schools develop learning outcomes for their graduates and then assess their students and graduates progress on those learning outcomes. This shift in accreditation from an input-based approach to an outcomes-based approach, if it is going to be taken seriously, requires that law schools embrace a more collaborative approach to legal education. The outcomes-based approach is a competency-based approach in which each law school collectively needs to make sure that its students and graduates are making progress in developing the various competencies the law school has identified within its learning outcomes. This is only going to happen if the faculty collaborate to assure that across a set of required and elective courses students and graduates receive opportunities to develop and demonstrate the identified competencies.” (Jerome Organ, St. Thomas (Minnesota))

“Faculty have an invaluable role to play in the second phase — developing new ideas and approaches — but we can sometimes be overly cautious on this score: until we know everything, we feel like we shouldn’t try anything. The changing landscape of higher education, however, requires greater receptivity to experimentation.

“It is at the third phase of execution, however, that the effects of that changing landscape show up most starkly. Simply put, I don’t believe we have the luxury of not granting administrators and staff the lead role in executing on the vision and initiatives the faculty has determined to embrace. The alternative — that we retain that task as faculty, to be carried out alongside our scholarly and teaching obligations — creates the risk that important undertakings will fall by the wayside. If the faculty’s role in defining the vision and assessing outcomes is not shortchanged, however, I believe that delegation can be a powerful tool.

“Beyond that, one broader reflection:

“In my own experience, strong faculty engagement is essential to the success of any effort at moving an academic institution forward in a sustainable fashion. I fully appreciate why many academic administrators see peril in such engagement — fearing some resulting push toward perfect transparency or decision-making by committee of the whole.

“In my own experience, however, it is far more often disengagement of faculty that is the greatest challenge. Not any excess enthusiasm to be involved. The latter, I believe, can almost always be channeled to productive ends. In the absence of engagement, however, it is all but impossible to do great things.” (Robert Ahdieh, Emory University)

“Most symposium participants have not discussed attorney licensing as being ripe for serious reform. In response, let me describe a licensing regime worth considering. Its key features include:

A one-time examination, after three or four years of law school.
The examination is all or nothing, so the new attorney may handle any matter on day one, without regard to specialization or degree of difficulty.
The subjects tested have been understood to be foundational since 1870.
Memorization of common law rules is emphasized.
Although taken after graduation, the exam tests knowledge and application of doctrine mainly learned in the first year of law school.
The same multiple choice component is used across the country, but states get to determine competency by setting different passing scores on that single test.
The test is sufficiently similar to the LSAT that elite law schools can make curricular decisions without being distracted by licensing concerns.
Clinical experience — or even having seen an attorney with a client — is optional prior to licensing.
Oh wait. That’s our current system of attorney licensing. Surely changing this is foundational for most of the other reforms that have been discussed.” (Joan Howarth, Michigan State University)

[To be continued]

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